The Access to Information Act and Cabinet confidences. A Discussion of New Approaches

Transcription

1 The Access to Information Act and Cabinet confidences A Discussion of New Approaches This study was prepared by RPG Information Services Inc. for the Information Commissioner of Canada 1996

2 The Information Commissioner of Canada 112 Kent Street, 3rd Floor Ottawa, Ontario K1A 1H3 (613) (toll-free) Fax (613) Minister of Public Works and Government Services Canada 1996 Cat. No. IP34-7/1996 ISBN

3 Table of Contents I. Introduction... 1 II. Basis For Protecting Cabinet confidences... 4 III. Current Federal Policy and Practices Background and Overview of Cabinet confidences Policy Types of Records... 8 i) Memoranda... 8 ii) Discussion Papers... 9 iii) Agenda and records of Cabinet deliberations... 9 iv) Records of communications between Ministers v) Records to brief Ministers vi) Draft legislation vii) Records containing information about confidences Current Cabinet Papers System IV. Other Approaches to Cabinet confidences Australia Ontario i) The Williams Commission a. Records of Decision b. Background annexes and appendices ii) c. Background and analysis prepared for Cabinet Ontario Freedom of Information and Protection of Individual Privacy Act a. Disclosure in the Public Interest b. Restriction on Delegation Federal Standing Committee Report on Access and Privacy Open and Shut British Columbia Freedom of Information and Protection of Privacy Act B.C. Commissioner's Views on Section Alberta Freedom of Information and Protection of Privacy Act Chart Comparing Cabinet confidence Provisions V. Conclusions and Recommendations Exemption or exclusion Mandatory or discretionary exemption Injury test Nature of class test Definition of Cabinet Coverage of exemption Splitting the protection of Cabinet confidences V. Conclusions and Recommendations (Cont'd) PAGE I

4 Appendix A 8. Exceptions to Cabinet confidences exemption Time limits Background explanations and analysis Summary of decision Cabinet as appeal body Disclosure with consent of Cabinet Disclosure in the public interest Restrictions on examination and review of Cabinet confidences Suggested exemption provision for Cabinet confidences PAGE II

5 The Access to Information Act and Cabinet confidences A Discussion of New Approaches I. Introduction The Access to Information Act has operated for almost 15 years in Canada to help make government more open, understandable and accountable to the citizenry. It established a right to know, set standards for what the government could legitimately keep secret and affixed to a Westminister-style government a system of review of refusals of access which is independent of government. The effectiveness of access rights, however, depends upon the classes of records which are not accessible. There are troubling gaps in the coverage of the Access to Information Act. In fact, in terms of the comprehensiveness of its coverage, the Access to Information Act is very much behind the times. This report examines what is arguably the major gap in the law's coverage Cabinet confidences. Cabinet confidences that have been in existence less than twenty years are generally excluded from the coverage of the Access to Information Act. Subsection 69(1) provides that the Act does not apply to confidences of the Queen's Privy Council for Canada, including: (a) (b) (c) (d) (e) (f) (g) memoranda the purpose of which is to present proposals or recommendations to Council; discussion papers the purpose of which is to present background explanations, analyses of problems or policy options to Council for consideration by Council in making decisions; agenda of Council or records recording deliberations or decisions of Council; records used for or reflecting communications or discussions between ministers of the Crown on matters relating to the making of government decisions or the formulation of government policy; records the purpose of which is to brief ministers of the Crown in relation to matters that are before, or are proposed to be brought before, Council or that are the subject of communications or discussions referred to in paragraph (d); draft legislation; and records that contain information about the contents of any record within a class of records referred to in paragraphs (a) to (f); 1 1 For convenience in this document confidences of the Queen's Privy Council for Canada will be referred to as Cabinet confidences and the PAGE 1

6 The term Council is defined in the Act to mean the Queen's Privy Council for Canada, committees of the Queen's Privy Council for Canada, Cabinet and committees of Cabinet. This is taken to cover the standing committees, ad hoc committees and any other committee of ministers, including informal meetings between or among ministers, provided that the records created concern the making of government decisions or the formulation of government policy. The fact that Cabinet confidences are excluded from the Access to Information Act means that the access rights conveyed by that legislation do not apply to these types of records, including the right of review by the Information Commissioner or the Federal Court of decisions to deny requests for such records. If the government decides that a requested record must remain secret because it is a Cabinet confidence, no independent review of this determination is available. The only exceptions to this general rule are: Cabinet confidences which have been in existence for more than twenty years and which become subject to the provisions of the Act (it should be noted that this does not mean that they will be released to an applicant if another exemption under the access legislation applies to them) [paragraph 69(3)(a)]; and discussion papers: if the decisions to which the discussion papers relate have been made public; or, if the decisions have not been made public, after four years have passed since the decisions were made. [paragraph 69(3)(b).] The decision to exclude Cabinet confidences from the coverage of the Access to Information Act was made at the eleventh hour (June, 1982 as a parliamentary session was closing) by a nervous Trudeau Government which sought to protect the essential processes of Cabinet and parliamentary government while proceeding with access legislation. However, the conversion of the strong, mandatory class exemption for Cabinet confidences that had been originally drafted into an outright exclusion from the coverage of the Act served as a lightening rod for criticism which brought the legislation into some disrepute even before it was proclaimed in July, Dubbed the Mack Truck clause by the Opposition and media alike, the exclusion of Cabinet confidences was immediately fastened on as evidence that the Trudeau Liberals, long in power and with many secrets to keep, had brought forth a secrecy law camouflaged in the language of openness. Queen's Privy Council for Canada, in all its various forms, as either Council or Cabinet. PAGE 2

7 Three years after the law came into force its operation was reviewed by a parliamentary committee. Despite prudent administration of the exclusion through the Privy Council Office (PCO) to maintain a fairly limited interpretation of what actually qualified as a Cabinet confidence, the Standing Committee on Justice and Solicitor General heard more testimony on the need to reform this provision than on any other issue. 2 The Committee found many compelling reasons for protecting Cabinet confidentiality but went on to state in a unanimous report that:... the Committee does not believe that the background materials containing factual information submitted to Cabinet should enjoy blanket exclusion from the ambit of the Act (sic.). It is vital that subjective policy advice be severed from factual material found in Cabinet memoranda.... (But) factual material should be generally available under the Act unless, of course, it might otherwise be withheld under an exemption in the legislation. 3 The Mulroney government, which responded to the report of the Standing Committee, did not agree to make any amendment to end the exclusion of Cabinet confidences, despite the number of briefs recommending reform, the unanimous call for reform from Committee members and the suggestion from then Justice Minister John Crosbie that:... I think that in the past too much information was said to be covered by the principle of Cabinet confidence.... A lot of information previously classified as Cabinet confidence can and should be made available. 4 In any event, no legislative amendments resulted from the parliamentary review of the Access to Information Act. Now, a decade later, there are rumblings that reform of the legislation is being considered by the government. There is little doubt that if this occurs there will be a great deal of pressure to reform the treatment of Cabinet confidences under the legislation. Since section 69 is no longer an accurate representation of the Cabinet Papers System (this is discussed in detail below), amendments to this section are likely. This study concludes that the approach of excluding Cabinet confidences, which was criticized in 1982 and demonstrated not to be the direction that other jurisdictions were adopting in , appears absolutely shop worn in Most provincial freedom of information legislation has chosen to include a 2 See House of Commons, Canada, Open and Shut: Enhancing the Right to Know and the Right to Privacy, Report of the Standing Committee on Justice and Solicitor General on the Review of the Access to Information Act and the Privacy Act, (Ottawa, ), p Ibid. 4 Ibid. PAGE 3

8 mandatory exception for Cabinet confidences, rather than exclude them from the coverage of their respective acts, and the result has not had an negative impact on the effectiveness of the collective decision-making of these Cabinets. The provincial models will be instructive in considering reform at the federal level of section 69. Indeed, it is the purpose of this paper to draw from the available experience in other jurisdictions in order to offer informed suggestions of reform in this area. To that end, the report: examines the bases for providing confidentiality to Cabinet confidences; reviews federal policy and practices currently in place to deal with Cabinet confidences; compares and contrasts some critical appraisals of the definition of Cabinet confidences for access to information schemes with legislated provisions, policies and practices in place in three provincial jurisdictions namely, Ontario, British Columbia and Alberta which have modern access legislation in place; and provides some suggestions for the structuring of exemption criteria which adequately protects the federal Cabinet system of government while including Cabinet confidences within the scope of the Access to Information Act. II. Basis For Protecting Cabinet confidences The federal policy regarding Confidences of the Queen's Privy Council for Canada provides the following rationale for protecting Cabinet confidences and for excluding them from the coverage of the Access to Information Act: The Canadian government is based on a Cabinet system. Thus, responsibility rests not in a single individual, but on a committee of ministers sitting in Cabinet. As a result, the collective decision-making process has traditionally been protected by the rule of confidentiality. This rule protects the principle of the collective responsibility of ministers by enabling them to support government decisions, whatever their personal views. The rule also enables ministers to engage in full and frank discussions necessary for effective functioning of a Cabinet system of government. 5 This explanation does not differ substantially from other documents which have considered the relationship between freedom of information legislation and 5 Treasury Board Secretariat, Access to Information Act: Policies and Guidelines, (Ottawa, 1993), Confidences of the Queen's Privy Council for Canada. PAGE 4

9 Cabinet confidences, such as the report Open and Shut and the Ontario Royal Commission on Freedom of Information and Protection of Privacy (Williams Commission). 6 All see three justifications for the protection of Cabinet confidences: Convention of collective ministerial responsibility: This convention requires that each Cabinet member be accountable for government policy. Thus, at the Cabinet table, each minister should be free to exchange frank and vigorous views with his or her colleagues and to have those views protected. Need for candid advice from officials: A corollary of the first justification is the need for ministers to receive candid advice from their officials. That is more likely to occur, it is believed, if advice to ministers is provided in confidence. Confidentiality of Cabinet's agenda: Finally, it is felt that Cabinet's agenda should be confidential. This will allow cabinet to set its own agenda and carry on discussion without undue political pressures being brought to bear. This type of confidentiality helps ensure that Cabinet decisionmaking processes are conducted in as expeditious a manner as possible. While there is a significant degree of consensus on the need for some confidentiality of Cabinet confidences, there is much less consensus over just what needs to be protected. The Williams Commission puts it best: If it is obvious that the confidentiality of Cabinet deliberations must be preserved in a freedom of information scheme, it is less obvious how an exemption relating to this matter should be drafted. In particular, there is some uncertainty in the concept of Cabinet documents. If this phrase includes not only those documents that are physically within the possession of Cabinet officials, but also documents that are prepared for eventual submission to Cabinet, the notion of Cabinet documents would extend far beyond the Cabinet decision-making processes into the files of the various ministries and other governmental institutions The Williams Commission was of the opinion that a more restricted definition of records containing Cabinet confidences (and, hence, a narrower scope of confidentiality) was appropriate for access to information legislation. We will return to this question of defining Cabinet confidences within an access regime after considering the current application of the federal exclusion for such 6 Province of Ontario, Report of the Royal Commission on Freedom of Information and Protection of Privacy, volume 2, Freedom of Information, p Ibid. PAGE 5

10 records. III. Current Federal Policy and Practices 1. Background and Overview of Cabinet confidences Policy The federal approach to Cabinet confidences was being put in place just as the Williams Commission was completing its work. It was very different from the Ontario recommendations. The original federal Freedom of Information Act, Bill C- 15, drafted during the short-lived Clark government, had incorporated a mandatory exemption for Cabinet confidences, which permitted release of records containing background information, analyses of problems or policy options submitted or prepared for submission by a Minister of the Crown to Council for its consideration after a decision had been made by Cabinet with respect to a particular matter if no other exemption applied. This was as liberal as the federal drafters were to become. The Trudeau Liberal version of the Access to Information Act, which emerged as Bill C-45, eliminated this provision and established a broad, class-based exemption. There was no injury test, but rather an exemption for all information that qualified as a Cabinet confidence. A list of records that would qualify as confidences or would contain confidences was provided: memoranda to Council; discussion papers presenting background explanations, analyses of problems or policy options to Council; agenda and records of deliberation or decisions of Council; communications and discussions between ministers for the purpose of making government decisions or formulating government policy; briefing records for ministers in relation to matters that are before or are proposed to be brought before Council or reflect the communications or discussions referred to above; draft legislation; and records that contain information about any record within the classes of records referred to above. The only exception to the exemption was that such records ceased to be treated as Cabinet confidences after they had been in existence more than 20 years. Intense criticism during the committee hearings of the Standing Committee on Justice and Solicitor General on Bill C-45 led to the adoption of a government amendment relating to discussion papers. It was felt by members of the PAGE 6

11 committee that discussion papers could be moved out of the realm of Cabinet confidences after the decisions to which they related had been made public or a suitable amount of time had passed. The resulting amendment is reflected in paragraph 69(3)(b) which provides that the current exclusion does not apply to:... discussion papers described in paragraph (1)(b) (i) (ii) if the decisions to which the discussion papers relate have been made public; or where the decisions have not been made public, if four years have passed since the decisions were made. 8 All this was to no avail, however, as indicated above, the Trudeau government got cold feet and made the exclusion of Cabinet confidences the price Parliament must pay for the passage of the rest of the Access to Information Act in June, The administration of Cabinet confidences in relation to the Access to Information Act is carried out under a policy established by the Privy Council Office and issued, with other ATIP policy, by the Treasury Board Secretariat. This policy makes it very clear that neither the access rights nor the review procedures of the Access to Information Act apply to Cabinet confidences. It then goes on to establish the need, in policy not law, for government institutions to respond to requests from individuals that may involve Cabinet confidences and establishes a mechanism, under the coordination of PCO, for reviewing records to determine if all or part of a record contains Cabinet confidences. Whenever it is determined that all or part of a record contains Cabinet confidences, access to the information is refused to an individual on the basis that the record is excluded under section 69 of the Act. While a dissatisfied requester has the right to complain to the Information Commissioner, the right has little substance. The Information Commissioner is not entitled to view the excluded record (as he is in the case of exempted records). His only check on excessive use of the Cabinet confidence exclusions is to seek a certificate from the Clerk of the Privy Council that the record or a specific part a Cabinet confidence. This procedure was established by the first Information Commissioner, Ms. Inger Hansen, under the authority of section 36.3(1) of the Canada Evidence Act. Such certificates are similar to Australian practices under that country's Freedom of Information Act, where a minister or secretary of a department may issue a certificate that certain records meet particular exemption criteria. It must be stressed, however, that in Australia such certificates are reviewable by an independent authority. 8 Canada, Statutes, Access to Information Act, C. 111, Elizabeth II. PAGE 7

12 The federal Cabinet confidences policy stresses that, with two exceptions, there is no discretionary power provided to an individual minister or government institution to make a Confidence accessible to the public. The power to grant access is available only to the Cabinet or to the Prime Minister. When the records contain confidences of former governments, access is governed through former prime ministers and ministers. The two exceptions when ministers may authorize the disclosure of records are: the record was used for or reflects communications or discussions between ministers on matters relating to the making of government decisions or the formulation of government policy [paragraph 69(1)(d)]; or the record contains briefing notes related to the above paragraph 69(1)(e). In practice, however, ministers rarely waive Cabinet confidences and, when they do, they do so in close cooperation with PCO. The policy also establishes the principle of severability for those records described in paragraph 69(1)(g) of the Act, that contain information about the contents of Cabinet confidences. If the reference to a Confidence can reasonably be severed from the record in which it is found, then the policy permits this to be done in order to allow the rest of the document to become subject to the Act. 2. Types of Records In the main, the Cabinet confidences policy deals with the definition of records that qualify for the class of records known as Cabinet confidences. Subsection 69(1) of the Access to Information Act provides a general protection for Cabinet confidences (which is not defined) and the seven examples provided in it do not restrict the generality of the class. Thus, other types of records may well qualify as Cabinet confidences. The policy makes this point but goes on to more fully describe the documents which are generally considered to be Cabinet confidences. There are seven basic types: i) Memoranda Paragraph 69(1)(a) refers to records of which the purpose is to present proposals or recommendations to Cabinet. This class of records is represented by memoranda to Cabinet and Treasury Board submissions. They are normally signed by a minister recommending the action proposed but may also be signed by the Secretary to the Cabinet or by a Secretary to a committee of Cabinet and still qualify for the class of records. Any document prepared for the purpose of presenting proposals or recommendations to Cabinet would qualify for the class of records called Cabinet confidences. PAGE 8

13 The class extends to drafts of memoranda and submissions from first to final. Even records drafted for the purpose of presenting proposals and recommendations to Cabinet but which were never actually presented to Cabinet are still a Confidence. Having broadly included memoranda, submissions and other similar documents as Cabinet confidences, the policy then narrows the exclusion for attachments to such documents. The policy states: Material appended to a memorandum presented to Cabinet will not necessarily, independent of its attachment to that memorandum, be a Confidence. If a record was not prepared to present recommendations or proposals to Cabinet, but rather was prepared for a use unrelated to the Cabinet process, it is not itself a Confidence. For example, memoranda to Council may have as appendices newspaper clippings, tables of statistics, reports prepared for use within a department. These records in their original state are not confidences and they do not become confidences simply because they were attached to a memorandum and are thereby distributed to Cabinet or to ministers of the Crown for use in Cabinet deliberations. 9 Once again, the policy is based on the purpose for which the attachments were prepared. If the purpose is other than presenting proposals or recommendations to Cabinet and it is not evident that the documents were used in Cabinet deliberations, then they do not qualify as Cabinet confidences. On the other hand the analysis or background section of a memorandum to Cabinet does, under the policy, constitute a Cabinet confidence. ii) Discussion Papers Paragraph 69(1)(b) refers to discussion papers. This type of document is not often part of Cabinet Papers now. It was used in the past to present background explanations, analyses of problems or policy options to Cabinet for consideration by Cabinet in making decisions. To the extent that discussion papers included recommendations or proposals, they could slip over to being the types of documents described in paragraph 69(1)(a). For those that remained true discussion papers, the rules in paragraph 69(3)(b) apply. They are no longer considered a Confidence after the decision to which they relate has been made public or four years have passed. The discussion paper seems to have been largely abandoned in the Cabinet Paper System in favour of Analysis and Background sections in memoranda to 9 Treasury Board, Access to Information Policy and Guidelines, confidences of the Queen's Privy Council for Canada. PAGE 9

14 Cabinet. This was done, in the main part, to streamline the Cabinet decisionmaking process. An ancillary objective may have been to present these types of records from becoming accessible under the Access to Information Act. iii) Agenda and records of Cabinet deliberations Paragraph 69(1)(c) refers to agenda of Cabinet and to records recording the deliberations or decisions of Cabinet. Types of records which qualify here include agenda of meetings of Cabinet and committees, the minutes of any meeting of Cabinet and the records of decisions made in such meetings (e.g., Treasury Board decision letters). This includes drafts of these documents and any notes which officials may make of Cabinet or Cabinet committee meetings. This class of record involves an important qualification. The policy makes a distinction between the text of a formal Record of Decision, which is a Cabinet confidence, and a summary or substance of the decision of Cabinet, which is often made public. As the policy states:... the formal text of the Record of Decision is always a Confidence and is excluded from the application of the Act. The substance of a decision reached by Cabinet may be disclosed to the public as deemed appropriate by the Cabinet or by a minister with the approval of Cabinet. 10 A common example of this procedure is when the Treasury Board issues a circular or addition to a policy manual which incorporates the substance of a decision by ministers. Where a discussion paper is related to the decision, it ceases to be a Cabinet confidence and becomes subject to the provisions of the Access to Information Act, in accordance with paragraph 69(3)(b)(i). iv) Records of communications between ministers Paragraph 69(1)(d) deals with records used for, or reflecting communications between, ministers on matters relating to the making of government decisions or the formulation of government policy. Common forms of such records are letters between ministers setting out opinions or decisions and notes taken at meetings between ministers. The important factor here again is purpose. The information must relate to the making of government decisions or the formulation of government policy. For instance, a letter between ministers discussing current government policy should not qualify as a Cabinet confidence under this provision. v) Records to brief ministers 10 Ibid. PAGE 10

15 Paragraph 69(1)(e) refers to briefing materials for ministers for matters that are before, or are proposed to be brought before, Cabinet. It also includes briefing documents concerning matters that are the subject of communications or discussions between ministers in regard to making government decisions or the formulation of government policy. An important qualifier here is that the records must be for the purpose of briefing a minister in relation to matters before Cabinet or for use in a discussion with other ministers. If the record contains policy recommendations that were created independently of the Cabinet process, the records do not qualify as a Cabinet confidence even though the recommendations or advice may also be found in a record that does qualify as a confidence. The policy provides as an example:... a situation where a formal Record of Decision directs a government department to develop policy recommendations for its minister on a particular subject. The officials in that department have meetings for which agenda are prepared, notes are made of proceedings and reports are developed to be the basis of subsequent discussions on the same subject. Although the ultimate purpose of the meetings and reports is to develop policy recommendations for the use of the minister in his or her presentation to Cabinet, the records themselves are not confidences. The records were created for the use of officials while they are developing policies, not for the use of the Minister (emphasis added). 11 vi) Draft legislation Paragraph 69(1)(f) covers drafts of proposed legislation, regardless of whether the legislation was ever introduced into the House or the Senate or, indeed, seen by Cabinet. In all cases, draft legislation is deemed to be a Cabinet confidence. This remains true even after the final version has been introduced into the House or the Senate and even after the final version has been passed and proclaimed in force. vii) Records containing information about confidences Paragraph 69(1)(g) refers to records that contain information about the contents of all the other categories of records containing Cabinet confidences. This is a broad provision which the policy circumscribes by indicating that the provision does not cover records which simply contain information that is also 11 Ibid. PAGE 11

16 contained in the above records. In order to qualify, the record must connect the information with the collective decision-making and policy formulation processes of ministers. By way of example, the policy states that:... if a record refers to certain statistics which are also found in a memorandum to Cabinet, this fact alone does not convert the first record into a Confidence. But if the first record refers to the fact that a memorandum to Cabinet contained the statistics, then that first record itself becomes a confidence. 12 While the circumscribing of the nature of the records covered by the provision is important, it gives rise to extensive work in severing documents for partial release. The most common examples of Cabinet confidence information that appears in other records are references to Records of Decision and Treasury Board Numbers. While it is necessary to remove descriptive information about Cabinet deliberations or decision-making from records, the question remains as to what purpose is served by deleting numbers referring to Records of Decision or Treasury Board approval except that they fall within this broad class of record. We will return to a consideration of the nature of the records which should be covered in a Cabinet confidences provision later in this report. 3. Current Cabinet Papers System As indicated earlier, the current Cabinet Papers System does not completely parallel the types of documents described in section 69 of the Access to Information Act. This is troubling when exemption or, in this case, exclusion criteria are based on defined types of documents rather than being designed to protect a particular interest. The largest discrepancy occurs with discussion papers. The current Cabinet Papers System does not call for discussion papers. A memorandum to Cabinet is now more streamlined and comprehensive. Its structure is generally as follows: a set of ministerial recommendations. These are relatively short in nature (1 to 3 pages), and include an issue description, a rationale, and recommendations; a section on problems and strategies relating to the issue which defines why a particular option has been recommended; a section on political considerations; 12 Ibid. PAGE 12

17 a section on departmental considerations which deals with issues raised by other departments during consultation of the memorandum at the bureaucratic level; a section on communications issues and a strategy or plan for addressing these; background and analyses of the issues involved and consideration of options for reform; and annexes and appendices which provide more detail on particular matters. 13 The Analysis and Background section largely replaces the old discussion paper process. Its value in shedding light on the overall policy options that are open to ministers in their collective decision-making process has been recognized by the Order in Council of January 1, 1986, allowing the Auditor General to have access to analysis and background material in a memorandum to Cabinet after a decision has been taken. This procedure was put in place by the Mulroney government as a compromise solution to litigation brought by the Auditor General. He sought to obtain access to Cabinet documents of the Trudeau government relating to acquisitions made by PetroCanada in order to make an audit decision as to whether there was a sound basis for the acquisitions. As a result of the compromise, the Auditor General may now have access to any analysis or background material in a memorandum to Cabinet or Treasury Board submission where the Auditor General feels it is necessary in order to effectively audit the results of the decision or to report to Parliament on whether the government obtained value for the money expended as a result of the decision. It should be noted that the Cabinet Paper System is controlled by PCO and Treasury Board submissions are controlled by the Treasury Board Secretariat. In the case of PCO, a coloured paper system is used, no copying of Cabinet Papers is permitted and the Papers must be returned to PCO after a particular meeting or discussion has taken place. Cabinet Papers are classified Secret while most Treasury Board submissions are designated Protected. The other major anomaly with the current section 69 provision is that it does not recognize that there may have been public or special interest consultation concerning the various options open to the government before a collective decision is made at Cabinet or one of its committees. This is particularly relevant in regard to draft legislation and regulations. Currently, the policy does not set out a process for dealing with requests for Cabinet confidences which may have been the subject of some type of public consultation. This gives rise to cases of inequitable access where some parties have been provided with the record during consultations and others who request access under the Act are denied. 13 Canada, Privy Council Office, The Cabinet Paper System. PAGE 13

18 IV. Other Approaches to Cabinet confidences 1. Australia Australia was the only parliamentary democracy that was actively proceeding toward freedom of information legislation at the same time as Canada. Both countries had concerns about the impact of such legislation on Cabinet decisionmaking. Canada finally chose to exclude them from the right of access. Australia adopted a different, though still conservative, approach to protecting Cabinet documents but did include them in its Freedom of Information Act. It is important to note at the outset, however, that though the Westminster tradition of Cabinet solidarity forms part of Australian political theory, it is perhaps less strong than in Canada. Cabinet ministers in Australia take an oath of secrecy and decisions in Cabinet are arrived at through consensus not by vote, thus avoiding many splits in the ranks. But ministers have often quoted from the Cabinet documents of predecessor governments and the Cabinet room can leak profusely. Thus a freer system than strict Cabinet solidarity seems to be the rule in Australia. Subclause 34(1) of the Australian Freedom of Information Act provides that each of the following documents is an exempt document: a document brought into existence for the purpose of submission to the Cabinet which has been, or is proposed by a minister to be submitted to Cabinet; an official record of Cabinet; a copy or an extract from a document covered above; and a document, the discussion of which would involve the disclosure of any deliberation or decision of the Cabinet, other than a document by which a decision of the Cabinet was officially disclosed. 14 Like the federal Canadian approach, this is a broad class based exemption intended to cover specific types of Cabinet documents. There is no injury test. Once a document is determined to be of the class described, it is exempt. Subclause 34(2) provides that a certificate signed by the Secretary to the Department of the Prime Minister and Cabinet certifying that a document is of the kind referred to in subclause 34(1) establishes conclusively that it is such a document. However, the question whether there are reasonable grounds for the claim that a document is exempt may be referred to the Ombudsman or the Administrative Appeals Tribunal, the two appeal mechanisms under the Act. 14 See Commonwealth of Australia, Freedom of Information Act, subclause 34(1). PAGE 14

19 Further subclause 34(3) provides that where a document is an exempt document because a particular part of the document contains matter that discloses deliberations within the Cabinet or a decision of the Cabinet, the certificate given in respect of the document must identify that part. The effect of this provision is that the document as a whole would remain an exempt document under subclause 34(1). If, however, it is practicable to delete the Cabinet references, access must be given to a copy of the document containing the remainder of the information, unless that information itself is exempt under another provision of the Act. The term Cabinet is considered to include all its committees and similar provisions are made for certificates in regard to Executive Council documents (clause 35). The Australian legislation also includes in its exemption for internal working documents, certain classes of documents to which access may be contrary to the public interest. (clause 36) Among these classes are: communications between ministers; communications between ministers and their Departmental and other advisers, including the briefing of ministers on Cabinet submissions; and drafts of Cabinet submissions. A similar certificate process is in place where a minister is satisfied that disclosure of all or part of a document to which paragraph 36(1)(a) applies would be contrary to the public interest. The certificate establishes conclusively that all or part of a document is exempt so long as the certificate remains in force. However, the question of whether there are reasonable grounds for the claim that the disclosure of all or part of the document would be contrary to the public interest may be referred to the Administrative Appeals Tribunal for decision. It is important to note that internal working documents are not automatically exempt under clause 36. To justify refusal of access to a document, the agency concerned must also determine that it would be contrary to the public interest to give access to the document and specify the ground of public interest involved. The clause recognizes that, within the broad range of documents defined as internal working documents, there will be many that can be made public without harm to the public interest. This is particularly true of background information of a factual nature or of documents which contain information that has already been made public. A minister or his or her delegate must specify the ground of public interest on which the decision to refuse access is based. PAGE 15

20 Summary Thus, the highlights of the Australian protection for Cabinet confidences are: broad, mandatory exemption of documents brought into existence for the purpose of a submission to Cabinet or the Executive Council; equal protection for official records of the Cabinet and the deliberations or decision-making process of Cabinet; some discretion to individual ministers and departments to decide whether or not to release draft Cabinet submissions and briefing materials for use by ministers in Cabinet; use of a certificate system to establish whether all or part of a document can be exempted as a Cabinet document or an internal working document which either contains materials about Cabinet decisions and deliberations or is a draft Cabinet submission; and independent review of the basis of the decision to issue a certificate exempting all or part of the document. 2. Ontario i) The Williams Commission The Ontario Royal Commission on Freedom of Information and Protection of Privacy undertook the most thorough review to date in Canada of this type of legislation. It was reporting just as the federal Access to Information Act was being drafted and put into place. The Commission took approaches to a variety of matters which were quite different from the federal model. Perhaps the most far-reaching was its decision to recommend the adoption of an Information and Privacy Commission which could make binding decisions on appeals under the legislation, (on the Quebec model), rather than the federal approach of an information ombudsman with a right of appeal to the courts. However, the Williams Commission's approach on Cabinet documents also differed markedly from the federal approach. First, as noted earlier, the Commission affirmed its conviction that the notion of collective ministerial responsibility remained a vital part of the notion of Westminster-style, parliamentary government. In discussing the issue, the Commission assumed that Cabinet documents should form part of any scheme for freedom of information legislation but that it was also essential to preserve the confidentiality of Cabinet deliberations. The Commission then defined relatively narrowly what documents are in need of protection to preserve the confidentiality of Cabinet decision-making processes. In its view: PAGE 16

21 ... it is useful to assume, for definitional purposes, that Cabinet documents consist only of those documents that have been either generated by or received by Cabinet members and officials in the course of their participation in the decision-making processes. Thus described, Cabinet documents would include agendas, informal or formal minutes of the meetings of Cabinet committees or full Cabinet, records of decision, draft legislation, Cabinet submissions and supporting material, memoranda to and from ministers relating to matters before Cabinet, memoranda prepared by Cabinet officials for the purpose of providing advice to Cabinet, and briefing materials prepared for ministers to enable them to participate effectively in Cabinet discussions. 15 In this way, the Commission sought to restrict its coverage of Cabinet documents to those records where disclosure would reveal the substance of deliberations of Cabinet. The Commission Report then goes on to consider circumscribing these classes of records on three fronts: a. Records of Decision Consideration is given to the contention, which had been put forward in then draft Australian FOI proposals, that once a decision had been made, the immediate availability of the record of decision would be in the public interest. The Commission was not persuaded that this was good approach. It found many situations in which a Cabinet might have proper grounds for delaying the public announcement of a decision. Among the reasons for proper delay may be the need to: accommodate another government in its plans and actions; protect individuals until they have made preparations or certain events have transpired; plan for certain emergencies or put contingency plans into effect before public announcement; or respect the right of Parliament to announce major events in that forum. For these reasons, the Commission rejected the idea of immediate release of Cabinet decisions after they have been made. 15 Williams Commission, vol. 2, p PAGE 17

22 b. Background annexes and appendices The Commission had no doubt that background material attached to Cabinet submissions, which had been developed for departmental use and attached to a submission for information, should be routinely released. It found that release of such material was a common feature of all existing and proposed freedom of information legislation. The federal Australian FOI bill was quoted as proving... for the availability of such material by stipulating that the general exemption for Cabinet documents does not apply to a document simply by virtue of the fact that it has been submitted to the Cabinet for consideration, if it was not brought into existence for the purpose of submission for consideration by the Cabinet. 16 The Commission was of the view that ministries might release this type of record at any time that a request was made, provided there was no indication that such records had been appended to a Cabinet document and no other exemption applied to them. However, it did not consider that the responsible Cabinet office should be required to disclose such records at any time prior to Cabinet deliberations based upon them. c. Background and analysis prepared for Cabinet The Commission was inclined to adopt the position taken by the drafters of the original federal FOI proposal, Bill C-15. It saw no merit in releasing background and analysis materials before the Cabinet decision-making process was completed. This, in the view of the Commission, would create an undesirable pressure on the Cabinet to publicly respond quickly to enquiries concerning such material even though it may have not yet arisen for the consideration of Cabinet members. 17 However, after a decision has been made by Cabinet with respect to a particular matter, it believed that the reason for withholding disclosure lost its force. Thus, the Commission was in favour of the Bill C-15 wording as part of a Cabinet Documents exemption. This read that the exemption applied to records containing background information, analyses of problems or policy options submitted or prepared for submission by a Minister of the Crown to Council for consideration by Council for making decisions but only before such decisions are made. 18 The Commission viewed this as a reasonable limitation on Cabinet Documents exemption and supportive of the common government practice of making background information public when bills are introduced for parliamentary consideration. 16 Ibid., p Ibid., p Ibid. PAGE 18

23 Summary Overall, the Commission recommended the an exemption for Cabinet Documents whose disclosure would reveal the substance of Cabinet deliberations and, in particular, that the following kinds of Cabinet documents be the subject of this exemption: agenda, minutes or other records of the deliberations or decisions of Cabinet or its committees; records containing proposals or recommendations submitted, or prepared for submission, by a Cabinet minister to Cabinet; records containing background explanations, analyses of problems or policy options submitted or prepared for submission by a Cabinet minister to Cabinet for consideration by Cabinet in making decisions, before such decisions are made; records used for or reflecting consultations among ministers of the Crown on matters relating to the making of government decisions or the formulation of government policy; records containing briefings to Cabinet ministers in relation to matters that are before or are proposed to be brought before Cabinet, or are the subject of consultations among ministers relating to government decisions or the formulation of government policy; and draft legislation. 19 ii) Ontario Freedom of Information and Protection of Individual Privacy Act Much of the Ontario FOI legislation follows the recommendations of the Williams Commission. This is the case for Cabinet Documents, where Section 12 of the Ontario Freedom of Information and Protection of Individual Privacy Act expresses the notion that the confidentiality of the Cabinet decision-making process is adequately protected through an exemption rather than an exclusion and then goes on to set out and refine the ideas of the Commission. The need to generally protect the decision-making or deliberative processes of Cabinet is set out in the section's preamble, which states: A head shall refuse to disclose a record where the disclosure would reveal the substance of deliberations of an Executive Council or its 19 Ibid. PAGE 19

24 committees. 20 The preamble indicates that the exemption is mandatory and not based on an injury test. It does not, as does the federal exclusion, refer to confidences of the Queen's Privy Council but rather to a record where the disclosure would reveal the substance of deliberations of an Executive Council. Thus, attention is focused squarely on the contents of the record and what it reveals. The general nature of the provision means that a wide range of records or portions of records may qualify for exemption and the specific examples provided are simply that examples. The fact that a record does not fit into one of the categories does not mean that a record is excluded from the application of subsection 12(1). The specific examples are very similar to those of the Williams Commission. The focus remains on records reflecting Cabinet decision-making and the purpose for creating certain documents, i.e.: preparation for submission to Cabinet and relating to decision-making or the formulation of government policy. The categories are as follows: an agenda, minute or other record of deliberation or decisions of the Executive Council or its committees; a record containing policy options or recommendations submitted, or prepared for submission, to the Executive Council or its committees; a record that does not contain policy options or recommendations referred to in the above two categories and that does contain background explanations or analyses of problems submitted, or prepared for submission, to the Executive Council or its committees for their consideration in making decisions, before those decisions are made and implemented; a record used for or reflecting consultation among ministers of the Crown on matters relating to the making of government decisions or the formulation of government policy; a record prepared to brief a minister of the Crown in relation to matters that are before or are proposed to be brought before the Executive Council or its committees, or are the subject of consultation among ministers relating to government decisions or the formulation of government policy; and draft legislation or regulations. The refinements over the Williams Commission text are important: 20 Ontario, Statutes, 1987, C. 25, section 12. PAGE 20